GEMINI EXPORTS, MUMBAI v. ACIT 17(3), MUMBAI

ITA 5361/MUM/2008 | 2000-2001
Pronouncement Date: 29-01-2010 | Result: Partly Allowed

Appeal Details

RSA Number 536119914 RSA 2008
Assessee PAN AAAFG3731E
Bench Mumbai
Appeal Number ITA 5361/MUM/2008
Duration Of Justice 1 year(s) 5 month(s) 3 day(s)
Appellant GEMINI EXPORTS, MUMBAI
Respondent ACIT 17(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 29-01-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted G
Tribunal Order Date 29-01-2010
Date Of Final Hearing 28-01-2010
Next Hearing Date 28-01-2010
Assessment Year 2000-2001
Appeal Filed On 26-08-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G MUMBAI BEFORE SHRI D.K.AGARWAL(J.M) & SHRI R.K.PANDA ( A.M) ITA NO.5361/MUM/2008(A.Y. 2000-01) ITA NO.5362/MUM/2008(A.Y. 2002-03) ITA NO.5363/MUM/2008(A.Y. 2003-04) ITA NO.5364/MUM/2008(A.Y.2004-05) GEMNI EXPORTS B-202 NAV BHARAT ESTATE ZAKARIA BUNDER ROAD SEWREE(W) MUMBAI 400 015. PAN: AAAFG3731E (APPELLANT) VS. THE ACIT 17(3) MUMBAI. (RESPONDENT) ASSESSEE BY : SHRI DILIP LAKHANI REVENUE BY : SHRI MOHD USMAN ORDER PER R.K.PANDA A.M ALL THE ABOVE APPEALS FILED BY THE ASSESSEE ARE DI RECTED AGAINST THE SEPARATE ORDERS DATED 13/6/08 13/6/08 17/6/08 AND 13/6/08 OF THE CIT(A)XXVII MUMBAI RELATING TO ASSESSMENT YEARS 2000-01 2002-03 2003 -04 AND 2004-05 RESPECTIVELY. SINCE COMMON GROUNDS ARE INVOLVED IN ALL THESE APPE ALS THEREFORE THESE ARE BEING HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS C OMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA NO.5361/MUM/2008(A.Y.2000-01): 2. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSES SEE DID NOT PRESS GROUNDS OF APPEAL NO.1 TO 3 FOR WHICH THE LD. D.R HAS NO OBJE CTION. ACCORDINGLY THESE GROUNDS BY THE ASSESSEE ARE DISMISSED AS NOT PRESSED. 3. GROUNDS OF APPEAL NO.4 TO 8 RELATE TO DEDUCTION UNDER SECTION 80 HHC ON DEPB. ITA NO.5361TO5364/M/08) 2 3.1 AFTER HEARING BOTH THE SIDES WE ARE OF THE CO NSIDERED OPINION THAT THE MATTER REQUIRES FRESH ADJUDICATION AT THE LEVEL OF THE A.O IN THE LIGHT OF THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF TOPMAN EXPORTS VS. ITO 318 ITR 87(AT). WE ACCORDINGLY RESTORE THIS ISSUE TO THE F ILE OF THE A.O FOR FRESH ADJUDICATION IN THE LIGHT OF THE DECISION OF THE SPECIAL BENCH C ITED ABOVE AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. GROUND OF APPEAL NO.4 TO 8 ARE ACCORD INGLY ALLOWED FOR STATISTICAL PURPOSES. 4. GROUND OF APPEAL NO.9 RELATES TO CHARGING OF INT EREST UNDER SECTION 234B. 4.1 AFTER HEARING BOTH THE SIDES WE ARE OF THE OPIN ION THAT CHARGING OF INTEREST UNDER SECTION 234B IS MANDATORY AND CONSEQUENTIAL I N NATURE. ACCORDINGLY THIS GROUND BY THE ASSESSEE IS DISMISSED. 5. GROUND OF APPEAL NO.10 BEING GENERAL IN NATURE IS DISMISSED. ITA NO.5362/MUM/2008(A.Y.2002-03): 6. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSES SEE DID NOT PRESS GROUNDS OF APPEAL NO.1 TO 3 FOR WHICH THE LD. D.R HAS NO OBJE CTION. ACCORDINGLY THESE GROUNDS BY THE ASSESSEE ARE DISMISSED AS NOT PRESSED. 7. GROUNDS OF APPEAL NO.4 TO 7 RELATE TO DEDUCTION UNDER SECTION 80 HHC ON DEPB. 7.1 AFTER HEARING BOTH THE SIDES WE ARE OF THE CON SIDERED OPINION THAT THE MATTER REQUIRES FRESH ADJUDICATION AT THE LEVEL OF THE A.O IN THE LIGHT OF THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF TOPMAN EXPORTS VS. ITO 318 ITR 87(AT). WE ACCORDINGLY RESTORE THE ISSUE TO THE FI LE OF THE A.O FOR FRESH ADJUDICATION IN THE LIGHT OF THE DECISION OF THE SPECIAL BENCH C ITED ABOVE AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. GROUND OF APPEAL NO.4 TO 7 ARE ACCORD INGLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.5361TO5364/M/08) 3 8. GROUND OF APPEAL NO.8 BEING GENERAL IN NATURE IS DISMISSED. ITA NO.5363/MUM/2008(A.Y.2003-04): 9. GROUNDS OF APPEAL NO.1 TO 4 RELATE TO DEDUCTION UNDER SECTION 80 HHC ON DEPB. 9.1 AFTER HEARING BOTH THE SIDES WE FIND THE ABOVE GROUNDS ARE IDENTICAL TO GROUNDS OF APPEAL NO.4 TO 8 IN ITA NO.5361/MUM/08. WE HAVE ALREADY DECIDED THE ISSUE AND RESTORED THE MATTER TO THE FILE OF THE A.O FOR FRES H ADJUDICATION IN THE LIGHT OF THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN TH E CASE OF TOPMAN EXPORTS(SUPRA). FOLLOWING THE SAME RATIO THIS ISSUE IS RESTORED TO THE FILE OF THE A.O FOR FRESH ADJUDICATION. ACCORDINGLY THE GROUNDS RAISED BY T HE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 10. GROUNDS OF APPEAL NO.5 TO 7 RELATE TO DEDUCTION UNDER SECTION 80 HHC OF THE AC ON INTEREST INCOME OF RS. 2 12 344/-. 10.1 AFTER HEARING BOTH THE SIDES WE ARE OF THE CO NSIDERED OPINION THAT THIS ISSUE SHOULD ALSO GO BACK TO THE FILE OF THE AO FOR FRESH ADJUDICATION IN THE LIGHT OF THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN TH E CASE OF TOPMAN EXPORTS(SUPRA). WE FIND THE TRIBUNAL AFTER CONSIDERING THE VARIOUS DECISIONS INCLUDING THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF INDO S WISS JEWELS LTD. 284 ITR 389 THE DECISION OF THE DELHI HIGH COURT IN THE CASE OF SHR IRAM HONDA POWER EQUIPMENT LTD. 289 ITR 475 AND THE DECISION OF THE SPECIAL BENCH O F THE TRIBUNAL IN THE CASE OF LALSON ENTERPRISES REPORTED IN 89 ITD 25 (AT PARA 9 3 TO 99 OF THE ORDER) HAS LAID DOWN CERTAIN PRINCIPLES FOR GRANTING DEDUCTION UNDER SEC TION 80 HHC ON INTEREST INCOME. WE THEREFORE RESTORE THIS ISSUE TO THE FILE OF THE AO FOR FRESH ADJUDICATION IN THE LIGHT OF THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNA L CITED ABOVE AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEAR D TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. THESE GROUNDS RAISED BY THE AS SESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.5361TO5364/M/08) 4 11. GROUND OF APPEAL NO.8 RELATES TO CHARGING OF IN TEREST UNDER SECTION 234B WHICH IN OUR OPINION IS MANDATORY AND CONSEQUENTIA L IN NATURE. ACCORDINGLY THIS GROUND BY THE ASSESSEE IS DISMISSED. 12. GROUND OF APPEAL NO.9 BEING GENERAL IN NATURE IS DISMISSED. ITA NO.5364/MUM/2008(A.Y.2004-05): 13. ALL THE GROUNDS IN THE IMPUGNED APPEAL RELATE T O DEDUCTION UNDER SECTION 80 HHC ON DEPB. 13.1 AFTER HEARING BOTH THE SIDES WE FIND THE ABO VE GROUNDS ARE IDENTICAL TO THE GROUNDS OF APPEAL NO.4 TO 8 OF ITA NO.5361/MUM/200 8(A.Y.2000-01). WE HAVE ALREADY DECIDED THE ISSUE AND THE MATTER HAS BEEN R ESTORED TO THE FILE OF THE AO FOR FRESH ADJUDICATION IN THE LIGHT OF THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF TOPMAN EXPORTS(SUPRA). FOLLOWING THE S AME RATIO THESE GROUNDS ARE RESTORED TO THE FILE OF THE AO FOR FRESH ADJUDICATI ON IN THE LIGHT OF THE DIRECTIONS GIVEN THEREIN. THE GROUNDS RAISED BY THE ASSESSEE ARE AC CORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 14. IN THE RESULT ALL THE APPEALS FILED BY THE ASS ESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THE 29 TH DAY OF JAN.2010. SD/- SD/- (D.K.AGARWAL) (R.K.PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED. 29TH JAN.2010 COPY TO: 1. THE ASSESSEE 2. THE REVENUE 3. THE CIT CITY CONCERNED MUMBAI THE CIT(A)- CONCERNED 5. THE D.RG BENCH. (TRUE COPY) BY ORDER ASST. REGISTRAR ITAT MUMBAI BENCHES MUMBAI. VM. ITA NO.5361TO5364/M/08) 5 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 28/1/2010 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 28/1/2010 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7. FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER ITA NO.5361TO5364/M/08) 6